Spotty Records Weaken Background Checks

By

Laura Meckler and

Jack Nicas

Updated Jan. 15, 2013 7:35 p.m. ET

WASHINGTON—Polls show that expanding background checks to cover all gun sales, not just those by licensed dealers, is one of the most popular measures being considered by the White House to curb gun violence.

There's one problem: The system President Barack Obama and many lawmakers hope to expand is full of holes.

The National Instant Criminal Background Check System, which federally licensed firearm dealers must use to check the credentials of potential gun buyers, doesn't include millions of people legally barred from owning guns, researchers and advocates say. Fourteen states list fewer than five people flagged for mental-health issues.

Researchers also found major gaps in filing records of known drug offenders, who are temporarily prohibited from buying firearms. But states are much better at reporting the names of people convicted of felonies, researchers found.

"Many states are still failing to do the bare minimum," said Mark Glaze, director of Mayors Against Illegal Guns, which studied the matter in a 2011 report. "We know they have hundreds of thousands of records sitting in state agencies."

Mr. Obama is slated Wednesday to detail his policy response to the Newtown, Conn., elementary-school shooting that killed 20 children and a total of seven adults last month. An expansion of the gun-check system will be among his proposals, people briefed on the matter said.

The proposal would extend gun checks to all sales at gun shows and to private transactions between individual buyers and sellers, these people said. Currently, only sales by a federally licensed dealer are subject to gun checks. Federal law prohibits the sale of firearms to convicted felons, recently convicted drug users and individuals adjudicated to be mentally unfit, among others.

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Mr. Obama also is expected to propose ways to improve reporting to the existing system. Possibilities include directing the Bureau of Alcohol, Tobacco and Firearms to prod states to submit more records, upgrading technology to automatically notify law enforcement when someone fails a background check and improving incentives for states to submit records. The latter would require congressional approval, as would any expansion of the system.

Alan Gottlieb, founder of the Second Amendment Foundation, a gun-rights research and education group in Bellevue, Wash., said that past efforts to expand the background-check system have included unacceptable provisions such as making organizers of gun shows criminally liable for errors. In addition, he said, the background-check system tends to break down on weekends, when gun shows often swell traffic.

Mr. Gottlieb isn't necessarily opposed to expanding the system, however. "If you have a law that says certain people are prohibited from having a firearm you should be able to check it. That makes common sense to me," he said.

Gun-control advocates have helped highlight these flaws, but some also worry that focus on the system's holes will be used as an excuse to block legislation requiring universal use of the background check system. An estimated 40% of all gun sales are private and therefore exempt from any background check, offering prohibited buyers a ready avenue to obtain guns, said Dan Gross, president of the Brady Campaign to Prevent Gun Violence.

"If you're a bad guy planning to do something bad on an airplane and you have a choice of going through an airport that has metal detector and or one that doesn't, which will you go through?" he asked.

New York state took steps Tuesday to bolster its background-check system as part of firearm-restrictions legislation that Democratic Gov. Andrew Cuomo signed into law. People deemed "likely to engage in conduct that would result in serious harm to self or others" by mental-health professionals would be added to a state database for checks.

The gaps in the federal database trace back to a 1997 U.S. Supreme Court decision that struck down part of a law requiring states to report mental-health records, ruling that states could share such records as they wished.

Today, eight states account for 84% of the database's mental-health records, according to an analysis by the mayors' group. Separately, the Government Accountability Office found that a dozen states accounted for the vast majority of mental-health records and that "most states have made little or no progress in providing these records."

Still, some states have made strides, contributing to a 40% increase in mental-health records reported from October 2011 to October 2012.

Two years ago, Delaware Gov. Jack Markell pushed a new law to overcome state privacy laws that prohibited data sharing. By late last year, the state had reported about 18,700 records, or the second most per capita in the nation, up from zero before the new law.

"It was ridiculous that we have this information and we weren't reporting it," said Mr. Markell, a Democrat. "A background check is only as good as the records in the database, so I think we all have a responsibility to report" mental-health records.

Virginia Gov. Bob McDonnell, a Republican, an advocate of gun rights, has also focused on the importance of the national database since Seung-Hui Cho killed 32 people and himself at Virginia Tech in 2007. Last year, Mr. McDonnell sent a letter to the nation's governors urging them to improve their states' reporting of mental-health records.

Mr. Cho was able to purchase guns used in the crime despite a court ruling that he was mentally ill. That ruling wasn't reported to the national database because of a loophole in Virginia law. Since then, the state has amended the law and now has reported more records per capita than any other state.

After the Virginia Tech shooting, Congress passed a law to encourage states to report mental-health records by offering grants and threatening to dock federal funding if states don't meet certain thresholds. Some states said the penalty would be more of an incentive to boost reporting, the GAO said, but the Justice Department has yet to penalize any state.

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